Citation Nr: 0818971
Decision Date: 06/09/08 Archive Date: 06/18/08
DOCKET NO. 07-22 228 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for cold injury residuals
of the feet.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
S. M. Kreitlow, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1951 to
November 1952.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee.
This case has been advanced on the docket due to the advanced
age of the veteran. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R.
§ 20.900(c) (2007).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran contends that he sustained frostbite to his feet,
bilaterally, while serving in Korea in either January or
February of 1952. The veteran's service treatment and
personnel records have not been located, except for his
separation examination, which is negative for any abnormal
findings. Rather the veteran's service records are presumed
to have been lost in the 1973 fire at the National Personnel
Records Center (NPRC). In such cases, the United States
Court of Appeals for Veterans Claims (Court) has held that
the duty to assist is heightened and includes an obligation
to search alternative forms of records that may support the
veteran's case. Cuevas v. Principi, 3 Vet. App. 542, 548
(1992). There is also a heightened obligation to explain
findings and to carefully consider the benefit of the doubt
rule in cases where records are presumed destroyed while in
the possession of the government. O'Hare v. Derwinski, 1
Vet. App. 365, 367 (1991). The case law does not, however,
lower the legal standard for proving a claim for service
connection. Russo v. Brown, 9 Vet. App. 46 (1996). The
Board finds that the following assistance should be provided
to the veteran in developing his claim.
The record shows the veteran was married to his current
spouse in 1953, and as the veteran is now shown to suffer
from Alzheimer's disease, perhaps she may recall more
information than the veteran. She should be invited to
submit a statement on the matter outlining her recollections
of the veteran's service experiences and any relevant post
service treatment. Any logical follow-up to her response
should be pursued.
There also is a statement from a private physician in the
record that suggests cold weather injury as the source of the
veteran's current peripheral neuropathy. As such, the Board
finds that the veteran should be scheduled for a VA
examination, specifically a Cold Injury Protocol Examination,
to confirm that the veteran has residuals consistent with
cold injuries to his feet and, if so, to obtain a medical
opinion as to whether the veteran's current problems are
related to his military service in Korea.
The veteran is hereby advised that it is incumbent upon him
to submit to a VA examination if he is applying for VA
compensation benefits. See Dusek v. Derwinski, 2 Vet. App.
519 (1992). If he fails to report for a scheduled
examination, without good cause, his claim will be decided
based on the evidence of record, which may be insufficient to
render a favorable decision. 38 C.F.R. § 3.655(a) and (b)
(2007).
Accordingly, the case is REMANDED for the following action:
1. Contact the veteran and wife and request
completion and return of release forms
authorizing VA to obtain any treatment records
from his private medical care providers who have
treated him for his claimed cold injury
residuals. In this regard, the veteran's wife
should be invited to submit a statement
describing her recollections of the veteran's
relevant history, particularly as he may have
related to her concerning his in-service
experiences, as well as where he may have been
treated since service for the claimed disability.
2. Obtain the veteran's current treatment
records from the VA Medical Center in Nashville,
Tennessee for treatment for complaints related to
his feet from March 2007 to the present. All
efforts to obtain VA records should be fully
documented, and the VA facility should provide a
negative response if records are not available.
3. When the above development has been
accomplished and any available evidence has been
obtained, the veteran should be scheduled for a
VA Cold Injury Protocol examination. The claims
file must be provided to the examiner for review
in conjunction with the examination.
After reviewing the file and conducting any
necessary diagnostic testing, the examiner should
provide a diagnosis of any condition the veteran
has in his feet that is consistent with cold
injury residuals. Thereafter, the examiner
should render an opinion as to whether it is at
least as likely as not (i.e., at least a 50
percent probability) that any such condition
found is related to cold injuries as may have
been incurred in 1952.
The examiner is requested to support any opinion
provided with a full rationale that references
the February 2007 letter from Brooks Morelock,
MD.
4. Then, after taking any actions needed to
ensure VA's duty to assist and notice obligations
are accomplished and that the VA examination
report is complete, the veteran's claim should be
readjudicated. If such action does not resolve
the claim, a Supplemental Statement of the Case
should be issued to the veteran and his
representative. An appropriate period of time
should be allowed for response. Thereafter, this
claim should be returned to this Board for
further appellate review, if in order.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).